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About Google Book Search Google's mission is to organize the world's information and to make it universally accessible and useful. Google Book Search helps readers discover the world's books while helping authors and publishers reach new audiences. You can search through the full text of this book on the web at |http: //books .google .com/I r^ 7X c/. ^ I 66 NGEDBYTHE NECK U NTIL YOU BE DEAD ;" OR, WHY THE DEATH SENTENCE ' SHOULD BE ABOLISHED. BY A MEMBER OF THE NEW YORK BAR. < ^>» » WM. C. WILTON, PUBLISHER, BROOKLYN, N. F. 18 7 7. Entered according to Act of Congress, in the year one thousand eight hun- dred and seyenty-seyen, by WILLIAM C. WILTON, In the Office of the Librarian of Oongress, at Washington, D. C. INTROD UCTION. The question of the abolition of capital punishment is one which has been agitated for many years, and learned men, for and against, have discussed it before the public, through the press, and in the halls of legis- lation. The author is well aware that only a minority of the people — even in this age of enlightenment — agree with him, but believes that that minority is larger to-day by a hundred fold than it was half a century ago. The desire to execute liuman beings for capital offences is too firmly rooted and grounded in Society and the State to be eradicated except by discussing rationally and seriously the inhumanity of the practice. The reader is asked to consider the question presented herein, which is destined to engage the attention of the people of all nations in the future as they become more thoroughly educated in moral and Christian truth. HEAD NOTES TO CHAPTERS. CHAPTER I. Murder among the Gotba in Sweden and Denmark — Case of John Roose — Cokeys definition of murder — Blackstone's com- ments and opinion of murder — Cases of Lord Stafford and Lord Russell — Case of the Shears brothers — Execution for trivial offences. CHAPTER II. Positions of those who pardon — Opposition to capital punishment — Views of Elizabeth Fry — Secretary Stanton and Abraham Lincoln — The law of Iowa abolishing the death penalty — Petition of the Society of Friends — Argument used in favor of the death penalty — Views of George Fox. CHAPTER III. The trial of Mrs. Hartung — Charge of Judge Ira Harris in her case — The scene in Court — Position of the jury — The lesson this case teaches — Innocent men hung — Phair^s case in Ver- mont. CHAPTER IV. Right of trial by jury — Secured by Magna Charter in England — First law in New York creating juries — The juryman's position in case of murder — Qualifications of juryman — Execution of Owen Lindslay, at Syracuse, N. Y. — Affecting scenes — Execu- tion in Massachusetts — A clergyman's prayer on the scaffold — Divine authority for capital punishment discussed. CHAPTER V. Murderers plea of insanity — A case in New Jersey — Murders by drunkards — Case of Henrietta Robinson — Judge Harris again quoted — His charge to the jury in her case — What punishment is proposed as a substitute for banging — What its opponents ask — No Divine right given to execute men. (( ^i/f^i^FP :PT W? r^Ff UNTIL YOU BE DEAD-" ^ ^ N CHAPTER I. There is evidently a decided tendency on the part of many to look with increasing anxiety, every year, for a change in the mode of punish- ment of criminals convicted of murder. Men who, a few years ago, advocated the death pen- alty, now think and talk diflTerently ; the public mind has at length acquired fortitude to consider seriously any argument which may be presented to abolish legal executions, — and we fully be- lieve that now, at the beginning of the second century of our national existence, the people of our country mean to take this subject into con- sideration with a view to practical results, and study it without prejudice, for the highest 10 *• HANGED BY THE NECK good of society and the State, and for tlie pre- vention of crime. No fact is better established than this: Whatever the people do to prevent crime, not only aids in promoting a moral sen- timent in society, but reduces the burdens of taxation, and finally leads to the permanent good of those who often through neglect be- come criminals. In advocating the absolute and unqualified repeal of the law of capital punishment, there is but one motive of the author, and that is to awaken in the people a proper sense of the im- portance of its repeal, and to charactei'ize this law as one which ought not to be allowed to longer disgrace the statutes of our Christian country. Tlie nobler and better feelings of the human heart shrink from those sad scenes wherein human life is ofi'ered as an atonement for crime ; and those who live when this law of judicial murder becomes a thing of the past, will thank Grod for its abolition and regret that it ever prevailed as an American method of punishment. It has always been the design of the law- makers of all nations, so far as possible, to pass such laws as would tend to terrify the murderer UNTIL YOU BE DEAD." 11 and decrease this crime. In ancient times, it was applied to the secret killing of another. Among the Goths, in Sweden and Denmark, when a secret murder was committed, tlie law demanded that the community among whom such secret murder took place, should give up the murderer, and, on their failure to comply, the Vill in which the crime was committed, was liable to a heavy fine or amercement. This custom emanated from the presumption that the whole populace of the Vill perpetrated the crime, or were ac- cessory to it. Hence, if no surrender was made — whether or not the murderer was known to the Vill — a heavy amercement was laid upon its in- habitants, innocent and guilt)' alike. During the reign of that bloody monarch of England, Henry the Eighth, a statute was passed legalizing the boiling to death of any person found guilty of murder by poisoning. This oflTence was looked upon as the most henious and dastardly of all murders; wherefore there appeared no method so satisfactory for disposing of such a murderer, or to avenge such a crime, as that of boiling the wretch to death I The iniquitous law had its origin in a case that hap- pened during Henry's reign. A cook, by the 12 "HANGED BY THE NECK name of John Boose^ was detected throwing poison into a large potraf broth prepared for tlie Bishop of Rochester's family, and for the poor of the parish. He was at once arrested, tried, convicted of the terrible crime, and, nnder this more terrible statute, was sentenced to be boiled to death. Thus, amid the excitement of the populace, at a dark period in England's history, when her subjects knew but little of religious or human obligations, this man died by this most ignominious and horrible torture. Lord Coke, in his works, reports many cases where persons suffered death by tliis heathenish punishment. But this law, even in such times, remained but a short period to disgrace the English statutes. It was repealed by 1 Edward VI : C. 12. At common law, murder is " when a person of sound memory aiid discretion, unlawfully killeth any reasonable creature in being, and under the King's peace — with malice afore- thought, either expressed or implied." This is the definition given by Sir Edward Coke, and it has become the kx terroe of all civilized nations. UNTIL YOU BE DEAD." 18 The several States of this Union have based their statutory enactments upon this definition, as will appear by a careful perusal of the laws of most of the States of this Union. That great and learned commentator, Black- stone, who lived and wrote more than a cen- tury ago, at a time wlien the people of England were more clamorous for the blood of the mur- derer than they are now, wisely said, that '*it was far better ten guilty men escape than that one innocent person suffer." No one will ques- tion the wisdom of the saying, for in the humane recesses of every man's breast will be found a like sentiment. Nor can any one doubt that, if Blackstone were living to-day, he would — taking into consideration all his writings upon this subject, which very clearly and emphati- cally define his feelings — be expressly in favor of the total abolition of capital punishment. We find in his writings, side by side with the admission that while it was highly important for the king's peace that all murderers should be severely punished, a spirit of mercy permeating every page — a sublime voice declaring that there should be some other mode of punishing the murderer than by death. Writing of crimes 14 "HANGED BY THE NECK against the person, he says : ^' The most princi- pal and important is the offence of taking away that life which is the immediate gift of the great Creator, and of which therefore no man can be entitled to deprive himself (ir another, but in some manner either expressly commxinded in, or evidently deducible from^ those laws which the Creator has given us : the divine lata I mean, of either nature or revekUion"''' The question there- fore arises : Where do we find a right given man, coming from the Creator, to take that which the Creator alone can give, and which neither by " nature or revelation" we have a right to take ? Again Blackstone says : f ** To shed the blood of our fellow creature is a matter that requires the greatest deliberation and the fullest "conviction of our own authority, for life is the immediate gift of Ood to m^n^ which neither he can resign nor can it be taken from him unless by the command or per- mission cf Him who gave it ; either expressly re- vealed or collected from the laws of nature or society by clear and indisputable demonstra- tion." And again : ** When a question arises whether death may be lawfully inflicted for this or * Sharswood'a Blackstone, 4th Vol., page 176. t 4 Vol. Sharswood's Blackstonej p. 10. UNTIL YOXJ BE DEAD." 16 that transgression, the wisdom of the laws mast decide it."* When a murderer is " hang by the neck antil he be dead," then it is that the State, by and through its sovereign power, applies the lex talionisj which is against the very essence of the divine law coming to mankind from the Saviour. The history of the world presents many differ- ent modes of executing the murderer, or those who committed offences for which they suffered the death penalty. Men have been boiled, made to take the same kind of poison they gave their victims, their heads have been severed from their bodies, they have been shot in war, burned, starved, hanged by the neck, drawn and quar- tered, and otherwise judicially slain, according to the statutes in force at the time.* The princi- ple is the same in all cases, no matter by what process the life is taken, or under what law the condemned is made to expiate the crime com- mitted. In the early history of England, there was much discussion as to whether the king could *4 Vol. Slinrawood's Blackstone, p. 10. 16 "HANGED BY THE NECK change the punishment that the law imposed upon a subject for a crime to which the death penalty attached. While the statute remained in force for be- heading and burning, it was often varied by the king, who made hanging the penalty or vacated that part of the sentence which gave the sheriff orders to burn the body of the dead. Wlien Lord Stafford was convicted for the Popish plot, during the reign of King Charles tlie Second, he was sentenced to be beheaded, and the slieriffs were ordered to carry that sentence into execu- tion. But before the execution took place, and after the king's writ was received, tlie sheriffs petitioned the House of Lords for instructions how to execute him, believing as Lord Stafford had been prosecuted for impeachment — a crime punishable by death — that the king could not change the sentence in any way. The lords resolved that the sheriffs' scruples were ground- less, and declared that he must forthwith obey the king's writ. The discussion also engaged the attention of the Commons, who, after a debate extending over two days, at length sullenly re- solved that the king's writ must be obeyed, "UNTIL YOU BE DEAD. 17 and that Lord Stafford's head should be severed from his body. There is an old adage — ** it is a long lane that has no turn." Men often in this life are visited with the arbitrary injustice they meet out to their fellows. When this case of Lord Stafford's came be- fore the House of Lords, Lord Russell, who was a member of that body, claimed that if a king's subject was sentenced to be beheaded and the body burned, the king could not remit any part of the sentence. It is related that he took a decided stand in favor of this doctrine ; and the sentence, fiendish in all its conditions, was carried out ; and Lord Stafford was beheaded and burned. But to Lord Russell there came a day of reck- oning. That which he advocated and was in- strumental in causing to be meted out to Lord Stafford, came near being his own fate. He was afterward condemned for high treason, and had pronounced upon him the same sentence im- posed upon his unhappy peer. He appealed to the king to be spared the igno- minious part of the sentence ; and the king re- 18 "HANGED BY THE NECK mitted it, observing **tliat his lordship would now find that he was possessed of that preroga- tive which in the case of Lord Stafford he had denied him." Blackstone, in commenting upon the case, says: *'One can hardly determine (at this dis- tance from those turbulent times) which most to disprove of, the indecent and sanguinary zeal of the subject, or the cool and cruel sarcasm of the sovereign." In the year 1798, two brothers, Henry and John Shears, were tried at Dublin, Ireland, and convicted of high treason. The renowned Lord Norbury, the brilliant Curran, and the in- vincible Plunkett, were engaged in the trial. It was in an epoch of Ireland's history when England stood ready to draw the sword for the most trivial of offences. Curran in this case made one of his grand speeches. It was upon an objection his associate raised to one of the grand jurors who framed the indictment, on the ground that such juror was an alien — not natur- alized. In ordinary times this objection would have been fatal. But the excitement was great, and "UNTIL YOU BE DEAD. 19 tlie feeling intense against the prisoners. They were men of distinction and prominence, of ed- ucation and of great influence in Ireland. Lord Carlton presided at their trial. In reading the account of it, there is observable a strong bias, both from the bench and from the witness stand. Every question of law, every objection that was made by the defence to immaterial evidence, — in fact, all proceedings which could be construed in favor of the prisoners, were ruled out by this Court, and the trial was rushed to a conclusion as probably no trial, of so much importance, ever was before. Curran fought nobly for the unfortunate men. Many times he overpowered the court by his eloquence and masterly argument ; and when there was a visible effect in his brilliant forensic efforts upon the jury — made at almost every step of the trial — the prosecution and the court sought by every means to check, combat, and counteract it. It was a case in which the court all but proclaimed in advance that the prisoners must die because they were traitors, and because the loyal subjects of the king demanded pro- tection and satisfaction. 20 " HANGED BY THE NECK The jury retired, and in just seventeen minides brought in a verdict of *' Guilty !" After a feeling lecture to the prisoners, Lord Carlton pronounced the sentence, that they heex- ecuted the following day ; and after preparation by the sheriffs, these brothers were taken, arm in arm, upon the scaffold, and were hanged by the neck until they were dead? After they were let down, to add still greater horror to the execu- tion, the hangman separated their heads from their bodies, and, taking them up severally, pro- claimed to the bloodthirsty crowd— ^^ Behold the head of a traitor*.^ ^ These cases have been selected to illustrate the moral condition of those times. They prove that it was an easy and pleasant thing for a jury to condemn, forjudges to sentence, and for hangmen to execute those who were con- victed of any of the crimes punishable by death. Thus, in England, the judges of the olden time were the creatures of the throne : they were but the king's automatons echoing his sentiments. They pronounced the death sen- tence when commanded, and the people reposed in the old Mosaic law as a defence of the laws UNTIL YOU BE DEAD." 21 which were then enforced against marderersand others condemned by statutes to be mercilessly put to death. We find them proclaiming from the bench — speaking for the throne — the old Mosaic law: '*Thus saith the Lord of Hosts" — " and, moreover, ye shall take no satisfaction for the life of tiie murderer who is guilty of death, but he shall surely be put to death, for the land cannot be cleansed of the blood that is shed but by the blood of him that shed it." Can it not be truthfully said, that to-day this same spirit actuates a majority of those who recognize the Christian dispensation ? Even so late as the 18tli century, it was made in Eng- land a capital offence to maliciously break down a fish pond wherein fish were kept and liable to escape, as well as to maliciously enter an orchard and then cut down or wilfully injure any cherry tree. These statutes were in force during the reign of the first and second Georges. But as time elapsed, and the people became more lib- eral, these barbarous statutes were repealed, and during the reign of George the IV. the offender and his accessories became liable to banishment or imprisonment, at the discretion of the throne. Thus, at every step in history, we are horror 22 "HANGED BY THE NECK stricken by the bloodthirstiness that character- ized our species since God set His mark on Cain and sent him forth to be slain, down even to the nineteenth century, gilded as it is by the beams of the Sun of Righteousness. But the grosser atrocities were confined to an age of blood,— an age of crime and supersti- tion. They happened before mankind learned the teachings of Christ — before tlie people un- derstood what Christ's mission to earth was, or while understanding they disregarded it. They ignored those beautiful teachings : " Whosoever shall smite thee on the right cheek, turn to him the other also." ** Whosoever shall compel thee to go a mile^ go with him twain." ^^ Be merciful and thou shall obtain mercy. ^^ Yet, this language was addressed equally to the State as to the individual, and it is surely the duty of the State to see to it that the law of man does not conflict with the law of God. As an intelligent being, it is clearly the duty of each and every citizen, whether for or against the abolition of capital punishment, to study the will of our Saviour and the language of Christ's sermon on the mountain — admitted by secular philosphers to transcend tlie wisdom of Plato. ; UNTIL . YOU BE : DEAD. 23 But ill it there is not one word to justify the act of hanging human beings for any crime what- ever. When we come to a more minute examination of this very important subject, we find all oppo- sition comes from those who have opinions based upon the law laid down in the old testament and at a time long before men cultivated or be- came possessed of those finer feelings which have come to mankind by education and Chris- tian precept. It was during the dark ages that earthly laws were framed. From then until .now, men have been executed in all countries in diflFerent ways, for different crimes; Hence the prejudices which now exist against any material or permanent modification of this law, are based solely upon the theory that the law of retaliation is as much needed at this time as when in the dark ages human passions were in- tractable to restraint. 24 "HANGED BY THE NECK CHAPTER II. It mast be conceded that no State can afford to frame laws on principles of compassion for guilt ; yet, justice can be meted out to the con- demned by an act of government — which is the supreme power of the State— that is not a per- sonal thing nor inconsistent with justice but for the good of the State and for the welfare, hap- piness and peace of the people. We are bound by every interest of humanity — by every law that came by and from the Author of Mankind — to administer justice in mercy to the condemned offender. When there goes to the Governor of a State strong appeals for executive interference and clemency ; — long petitions signed by humane sympathising christian people for the pardon of offenders — when there is ushered into his pres- ence some prayerful mother, who has appeared for the purpose of obtaining a pardon for her way- ward boy— a boy over whom this fond mother has prayed from infancy, and for whom she now sheds bitter tears as she beholds him about UNTIL YOTJ BE DEAD. 25 to be led upon the scaffold to die in ignominy ; when a fond wife is ready to die for her husband rather than have him cast into a criminal's grave to disgrace her innocent children, that governor's position is an- unenviable one, and those who know nothing of these scenes can form but a faint idea of the executive's feelings and respon- sibilities at such times. We often hear it remarked that governors of States abuse the pardoning power in the magna- nimity extended by them to those who are sen- tenced to be executed, and they are unmercifully abused by a portion of the press, and by those who long to stand beneath th« gallows whereon these wretches are to be executed, and exclaim with emphasis, "hang him, it serves him right." But, humanely speaking, no man was ever yet pardoned who should have suffered death ; for death, though the law may declare otherwise, ought to come only from the Author of Man when He chooses to send it. Therefore, when kings, potentates, governors, or others in au- thority, having the lives of human beings in their hands, and in virtue of the powers vested in them grant pardons, the question very prop- erly is presented — Do they err in exercising the 26 "HANGED BY THE NECK humane clemency of sparing a poor sufFering being from the disgrace and ignominy of the gallows, and should they be condemned for such great and noble acts of mercy ? How many poor innocent children have been dis- graced by the execution of a father, and how many friends and relatives have been saddened by these judicial murders ? Many men have been hanged because they committed murder in the heat of passion caused by provocation, but not justifiable by any means, however sur- rounded by extenuating circumstances. Who • will say that justice would not have been as well served if the prison could have taken these men instead of the gibbet ? Then those who sit as judges upon the trials of criminals have a most unpleasant and solemn duty to perform in passing sentence upon a poor condemned fellow being. Almost every judge will assert that the most unpleasant part of his duty upon the bench is to preside in cases of murder, whenever un- fortunate men are being tried for their lives. No human being can go through the trial of a murderer as judge, counsel, or juror, without feeling that there is a power over and beyond the power of man, which should lead and guide in UNTIL YOU BE DEAD." 27 this most momentous, solemn duty. And when the jury convict and the judge, in solemn tones, pronounces the death sentence upon the crimi- nal, *^ hanged by the neck until you be dead," there goes a deep shudder to the heart of every sympathizing human being who reads or hears this fiat and who is not confirmed in the belief that this law is right. To say that in this age of Christian civilization and human progress, this mode of executing men, which emanated from the old Mosaic law, should be' continued, is a disgrace to our nationality. To keep in vogue the ancient doctrine of ''an eye for an eye, a tooth for a tooth," should cause the blush of shame to appear upon the cheek of every being who sanctions it. It is an admitted fact that there are many good people who view the question of the total abolition of capital punishment in a light diflfer- ent from this. They think that its abolition would not be conducive to the best interests of society and the State, and therefore are honestly against any change. No matter what religious argument is presented or brought forward in opposition to such practice, they assume that 28 '* HANGED BY THE NECK society has not only Divine right, authority, and precedent, but that it has an absolute, inherent right to say that he who offends and breaks the sixth commandment shall suffer death for the good of society — shall by his own life atone for that which he has taken. They hold, if it were not so ordained of God, that centuries ago this custom would have become extinct. In reply- ing to these arguments, advanced so confidently by a majority of the peoples of this and other countries, and as strongly and indelibly impressed upon the minds of men as they were during the bloody reign of Henry the VIII of England, there is found a full, complete and satisfactory answer in the 10th Chapter of Hebrews, 30th verse: *'Forwe know him that hath said ven- geance belongeth unto me, I will recompense, saith the Lord." And, also, in the 6th Chapter of Matthew, 7th verse, when Christ, as he stood before that multitude on the mountain, said : "Blessed are the merciful, for they shall oi)tain mercy." In the wisdom of our common Father in Heaven, He has constituted no two human be- ings alike. Look into a hundred thousand faces, and there may be found, it is true, some resem- UNTIL YOU BE DEAD." 29 blance, but there are no two alike. So with the mind. It is in His divine economy different in every human being. No two persons' thoughts upon any given subject run in the same chan- nel ; no two persons treating of the same sub- ject will treat it alike. They may come to the same conclusions, but as they travel along the lines of their subject they depart from each other, and are only united at the goal of their investigation. So men have in the past and will differ for some time to come regarding cap- ital punishment. But we do not fear they ulti- mately will agree that it should be abolished. No great reform has ever been brought about without labor. It has cost many thousands of lives to establish firmly the religion of our Saviour. It is not necessary in this volume to specify any particulars in this regard, nor need we refer to the blood and treasure that has been sacrificed from time immemorial to establish those great reforms which have brought man- kind nearer right upon all questions which were sought to be established and which are intended to bring men nearer to right and justice. Thus it is not surprising that in this land to- day we find Christian men — yes, and Christian 80 "HANGED BY THE NECK ministers — who are boldly giving this law their sanction, and thereby aid in keeping upon the statute books of most of the States this law of judicial murder. It is not surprising that some of our most learned Christian men fully believe that it would be an injudicious thing to repeal this law, which they Claim acts as a preventive of the crime of murder. Elizabeth Fry, who has made the condition of the inmates of States prisons and penitentiaries a study, and who has had great opportunities for observation, says, that ** the frequent public destruction of life by execution has a fearfully hardening effect upon those whom it is intended to intimidate." She further says : '* While it excites in them the spirit of revenge, it seldom fails to lower their estimate of the life of man, and renders them less afraid of taking it away in their turn by acts of personal violence."* During the great rebellion. Secretary Stanton was importuned day and night to pardon soldiers who were under sentence of death and were to be shot. No tears, no pleading, no petitions of mercy were of any effect. He was inexorable. * Janney^B Life of Q«orge Fox, p. 464. UNTIL YOU BE DEAD." 31 He would not allow himself to interfere with the army discipline. If a military court decreed, or military orders were issued, to shoot any soldier, they must be executed. There was no appeal from that decision, and he turned from him every pleading friend of a condemned man as if they were not worthy his attention for a moment. It is not for us to say that in times of rebellion — when we were struggling for national life — that he was not right. War creates desperate means for desperate ends. But look at the course of that good man. President Abraham Lincoln, in whose heart there was "malice towards none," "char- ity for all." Time and again he pardoned poor unfortunate men who had been sentenced to die. In the sympathy of his great heart, he could not under any circumstances permit the death of any man. It is related in Carpenter's "Six Months at the White House," that upon one occa- sion a member of Congress from New York, learn- ing that an old neighbor had been condemned to be shot, called to see Mr. Lincoln. The guard would not let him pass. " I must see him said the congressman — it is a case of life and death." "But," said the guard, "he is'^in bed.' "I can't help it, I must see him." The guard 32 "HANGED BY THE NECK passed him and he went to Mr. Lincoln's room, found him in bed, and told liim liis friend was to be shot the next day. He pleaded with the great man until, at last, without rising from his bed, he signed a reprieve, saying, as he did so, *'i donH think shooting him tvill do any goodJ^ Many cases similar to this one are related of Mr. Lincoln when his great heart, filled with mercy and pity, went out towards the poor condemned soldiers under sentence of death, — and, though army discipline was at stake, he could not bear to have a soldier shot. With him it seemed to make no difference what the offence — his desire was to save men from disgrace and death. He could not listen to an appeal without exercising that sympathy which few men would have en- tertained placed in his position, and many men are now living who can thank Abraham Lincoln that their lives were spared. It is the spirit manifested by Mr. Lincoln that is wanted in men to become advocates of the abolition of the death penalty : it is an out- growth of those generous, sublime traits in men, which portend human sympathy, human love, — a portion of that Divine love which is so powerful and yet compassionate. UNTIL YOU BE DEAD." 33 On the Ist day of May, 1872, the Legislature of the State of Iowa abolished capital punish- ment by passing the following act : **Chap. 137.— An Act in Relation to Capital Punishment and Regulating Par- dons. ^^ Sec. 1. Be it enacted by the General Assem- bly of the State of Iowa : The penalty of death as a punishment for crime is hereby abolished. ^^ Sec. 2. All crimes heretofore punishable with death, shall be punished by imprisonment for life at hard labor in the State Penitentiary. " Sec. 3. That in all cases of conviction under the preceding sections, the Grovernor shall not grant a pardon unless the same shall have been recommended by the General Assembly of the State. '' Sec. 4. This Act shall take effect from and after its passage and publication. '* Approved May 1st, 1872.'' During the sitting of the Legislature, in the year 1876, an attempt was made to abolish this law and to restore capital punishment. The Society of Friends at once sent forward a peti- 42 -HANGED BY THE XECK JIarc:;. lSo3, np.n tLe griani tbat the law of IS^'j to-'k airay :h-? p:»irer of execution, thereby miioing what hal be^fO done pnrsnant to the passage of that act, which reversed the jadgment and discharged Mrs. Hartnng from custody. This woman was guilty of this murder, and she should hare been punished. Her crime was the most heinous of all crimes, that of admin- istering slow poison deliberately to an unsuspect- ing victim, and that victim her husband. But the feeling at tliat time was averse to the hanging of any woman ; public sentiment ran high, and while it saw that she was evidently guilty, it abhored the scenes which would attend her execution. So strong was that sentiment, tbat the Legislature took the matter in hand, and, by its error in not abolishing the death penalty altogether, passed a law which the Court de- cided was ex post factoy and thus inoperative in the case of this poor woman. Had there been no attempt to change the law, the people at that time would have been called upon to witness the sad spectacle of hanging her by the neck until she was dead. This celebrated case was before the courts and country for nearly fouryeS.rs, as she was to have UNTIL YOU BE DEAD." 43 been executed on the 27tli day of April, 1859, and was not discharged by tlie Court of Appeals until March, 1863. As is well known, Mrs. Hartung was tried in the City of Albany before Judge Ira Harris and a jury. Judge Harris was an honorable, upright man, and an able judge. No one can fail to see, in perusing the proceedings in this case, that he was deeply impressed with the awful position in which this poor unfortunate woman was placed ; and no one can fail to see, too, when they read the able charge made to the jury, he was sensitive under the responsibilities of the position he occupied when called upon to inflict the death penalty. We have thought best to quote here a portion of the judge's charge in connection with the ver- dict of the jury, and let those who favor the death penalty say if there liad been no law to authorize the execution of this woman, whether such a scene would have taken place upon that occasion of her trial. Doubtless, if she could have been imprisoned for life, the jury would have promptly convicted her. The judge said: ^'The law gives to the ac- cused the benefit of every reasonable, rational, 36 "HANGED BY THE NECK thouglit, should be forever excluded from society, and in solitary confinement pay the penalty of his awful crime. Such is the condi- tion of the human heart in its depraved state, that the terror of the gallows seems to have no effect upon the confirmed criminal. For, with the sympathy of juries, through the technicali- ties of the law and the subtle acumen of coun- sel, there seems to be formed in the ininds of. most murderers the thought that there is by these devices a chance of escape from death ; and by and through these devices many guilty persons do escape. But with a solitary prison cell open before them, wherein they shall be confined during life, with no possible chance of liberty save what is proposed hereafter ; with a proper restraint upon the pardoning power, it is certainly fair and rea- sonable to^'presume that juries would overlook many questions of doubt which now arise to perplex them in almost every case, and apply these doubts, if considered at all, unfavorably to the murderer, he would therefore be more certain of conviction, and the criminal classes would be far less numerous and dangerous than now. UNTIL YOU BE DEAD." 37 The argument used by those who are oppos- ing its abolition, is the old Scriptural idea re- corded in the 9th Chapter of Grenesis, 6th verse : ''Whoso sheddeth man's blood, by man shall his blood be shed." Every prosecuting attorney upon the trial of the murderer, invariably pours this old Mosaic law in the ears of the jury. It has been the argument used to keep it upon the statutes of most of the States of the Union, and so effective has it been that, as we liave said be- fore, humane, wise men think it will be useless and highly improper to attempt its general re- peal. It is pleaded in justification, by every one who thinks, that the man or woman who delib- erately, with malice aforethought, takes the life of a fellow being shall pay for that life so taken the penalty of death. There are many Christian people who assert that '' any man who Mils another ought to he hanged J' ^ There are many ministers of the Gospel who preach what Paul taught when he said, '* but the greatest of these is charity," who, in spite of such teaching, turn to the world and say, ^^ tve mmt hang men whx> commit capital crimes,^ ^ " The good of society demands it — even Christianity de- mands it,"^^ 38 "HANGED BY THE NECK In the life of that good man, Gteorge Fox, who suffered so much for the cause of his faith in a religion which is so beantiful and so powerful, is found the following in opposition to the death penalty, which, we believe, states the established doctrine of the Society of Friends at this day : ** The proper ends of punishment in all criminal cases are—Jirst, to reform the offender ; second, to deter others from crime ; third, to obtain resti- tution or compensation. Society has no more right than individuals to execute vengeance upon its offending members. * Avenge not yourselves,' 'says the apostle to the Gentiles,' 'but rather give place unto wrath.' 'Ven- geance is mine, I will repay saith the Lord.' "The death penalty can neither reform the criminal nor procure restitution, — of the three ends proposed it can at best effect but one, that is, to deter others from crime. How far it subserves this purpose has of late years become a subject of serious examination, and many reflecting minds have arrived at the conclusion that it tends to promote crime rather than ppevent it. " We may urge another objection to the death penalty that it is irrevocaUe. If an innocent man suffer 8s society cannot restore him to life / and it is well UNTIL TOTJ BE DEAD. 39 known, that through the uncertainty of evidence, many such have been executed. *'A third objection is, that criminals often escape all punishment through the repugnance of jurors to find a verdict in capital cases ; whereas, if the penalty were imprisonment, at labor, for a length of time proportioned to the ofrence, convictions would be more certain, and all tlie ends of punitive justice would be ob tained."* What stronger argument can be ad- duced than this ? On the 20th day of September, 1876, in The Neto York Commercial Advertiser, one of the ablest and most popular of theeveningjonrnalsof that city, appeared the following editorial : ''Barbarity on the Scaffold. — A man was hung in Canada yesterday, and when the black cap had been drawn over his palid face, and the executioner attempted to spring the trap, a chain broke and the trap refused to work. A sledge hammer was brought and five long minutes were taken up in forcing the bolt. During all this time — an eternity to him — the wretched man stood there, with a perceptible shudder of the frame at * Jnnney'e Life of George Fox, p. 468. 40 "HANGED BY THE NECK each stroke of the hammer. He must have suf- fered a thousand deaths in that time, under the barbarous torture of the law, and even the spec- tators found the sight inexpressibly horrible. Such scenes are brutal, and such a mode of death is a disgrace to our civilization. The accidents that have recently taken place in Canada, Grreat Britain and this country, show that it is the method that is at faultj and not the executioners. Im- prisonment for life, without hope of a pardon^ would be far better than the barbarities of the rope." UNTIL YOU BE DEAD." 41 CHAPTER III. The trial of Mary Hartung, who was indicted for the murder of her husband, Emeil Hartung, in the City of Albany, N. Y., by administering poison to him on the 10th day of April. 1858, was one of the most exciting that has ever taken place in this country. She was tried in Janu- ary, 1859, and found guilty of murder in the first degree. She was sentenced on the 3d day of March, 1859, to be hanged on the 27th day of April of that year. On the 2Sd day of April — less than one week prior to the day her execu- tion was to have taken place— a stay of proceed- ings was granted and she was not executed. Her case was carried to the Court of Appeals of the State of New York, and that tribunal granted a new trial. This new trial was never had, for the Court of Appeals discharged her in 84 "HANGED BY THE NECK tiou imploring the Legislature not to repeal this hunaane law, which had for four years been the law of the State. In it they said : '' We believe we are not influenced by a sickly sentimentalism. on the subject. Human life is the boon conferred by tlie Almighty on man, the pivot of his des- tiny for the present and the future. Who but the Divine author of life can assume the awful responsibility of extinguishing it ? Let the mis- guided victim be surrounded by all the guards which the safety of the community requires, in the silent cell, where he could commune with God, the convict would have an opportunity for contemplation and repentance and could harm no one. The infliction of the death penalty is, we believe, not only an unwarrantable assump- tion of a prerogative that the State should not assume, but induces a demoralizing public senti- ment and lacerates the feelings of a very large class of people. Conscientious repugnance to the death penalty by many, we have no doubt, has induced the escape of guilty persons upon whom the sentence of the law should have been visited, while there would be no hesitation in convicting a guilty party and sentencing him to his fate, where, if there was a possibility of his innocence ever being UNTIL YOU BE DEAD. 35 made apparent, it would not be too late to meet out justice to injured innocence. We believe a class of persons who deserve severe chastisement by law, are those who impiously take the law into their own hands in an unauthorized and illegal manner ; and we further affirm that we believe that if the law was more stringent against the sale of rum there would be less crime com- mitted." This petition is a merciful document that ap- peals to every heart, and places in a noble light the men who, by their love for Grod and sympathy^ for His created beings, are anxious to stop for- ever the murder of men by sanction of law. " Conscientious repugnance." What man or woman living to-day, who has read the terrible tales of the scaffold, whose better nature has not revolted, and whose feelings of "repug- nance" have not gone forth toward these terrible scenes of judicial murder? ''Who but the Divine author," surely, has the power to ex- tinguish human life ? Who but our Father in Heaven has the right to condemn a being to die ? Willful murder is the greatest of all crimes, and, he who commits it, with malice afore- 44 "HANGED BY THE NECK well grounded doubt It is an admirable.feature of our law, that maxim, that an individual is always to be presumed innocent until guilt is established. Every jury is allowed to act upon this presumption ; and if the guilt of the ac- cused, in this case, is not established to youremtire satisfaction, this presumption comes in, and allows you to say she is not guilty. It is the right of the accused, that she shall have the benefit of every reasonable doubt. But if, after consid- ering the whole case ; — if after a deliberate re- view of the testimony ; if after considering the testimony in all its bearings, — if then your minds are led irresistibly to the conviction that the poigon which produced his death was adminis- tered by the hand of the prisoner, that she is guilty of her husband's death, then, however painful to her, you have no alternative. The o^th which you have taken, that a true verdict you will render, requires that you should pro- nounce her guilty. Gentlemen, I submit the case of this unhappy woman to your hands. Be merciful but just. Let your verdict be such that, in after life, when you reflect upon this atv/ul moment^ your consciencies will be at rest. Hold the balance of justice with an even hand. UNTIL YOU BE DEAD." 45 '^Grive the accused the benefit of any reason-^ able doubt ; but if you can find no such doubt on which your merciful wish can hang, then you must render a verdict of guilty. Grentlemen, the destiny of the accused is in your hands." The jury retired to consider their verdict on Saturday, the 5th day of February, and on Mon- day, the 8th day of February, came into Court and submitted the following communication: *'The jury are willing and ready to admit that the prisoner is not innocent, but is guilty to a certain extent, but not as principal. We are divided on this question. Now, sir, they wish to know if they can render any other verdict than guilty or not guilty of the crime of which she stands charged ?" Judge Harris: "I see, gentlemen, the point on which your minds are laboring, and I feel bound to say this much to you, that I can con- ceive of no aspect of the testimony in this case which would warrant you in finding any other verdict than 'guilty' of the crime with which the accused is charged. There are cases where the testimony may warrant a conviction for a crime of an inferior grade ; but in a case of this char- 46 -HANGED BY THE NECK acter — a case of poison — the accused is guilty or not guilty of the crime. While I am pained to say so, I am constrained to say that in tliis case a verdict of manslaughter would not be sus- tained by the evidence." Foreman : "Some of the jury wish to know if the counsel for the prosecution and the pris- oner would agree on a different verdict than * guilty,' whether it could be done." Judge Harris: "I suppose not. Counsel cannot agree upon a verdict of manslaughter, as was done in a recent case; but I feel con- strained to say it would not be warranted by the evidence." Foreman : " We wish further to state to your Honor, that it is utterly impossible for us to agree upon a verdict, either of ' guilty' or ' not guilty,' — we have tried and failed." Judge Harris: " I would suggest under the circumstances — the jury liaving had their minds engaged with this last proposition, — whether it would not be advisable to retire for a few min- utes, and look over the ground once more, after what has occurred in Court." UNTIL YOF BE DEAD." 47 The jury then again retired, and after an ab- sence of fifteen minutes, returned into Court again, with a verdict of '^guilty," and the pris- oner was sentenced to be executed on Wednes- day, the 27th day of April, 1859.* After a careful perusal of the above charge and the proceedings of the jury in opon court, can we not reasonably infer that so wise and able a man as Judge Harris was considered to be, would not, if he had had the opportunity, been an open advocate of the abolition- of capi- tal punishment ? Can we not plainly see that the jurors in this case were opposed to the death penalty ? Can we not see that there was mani- festly a desire to find her guilty of the crime charged if any other punishment than death could have been inflicted ? But the gallows stood erected before these jurors, — they could be- hold her struggling, suspended between heaven and earth ; and thus shrank from a duty which was so solemn, and fraught with such awful consequences. In all periods of history, we find cases wherein innocent men have suffered death for crimes * Reported 4Ui Parkin's Criminal Bepto., page 812. 48 *• HANGED BY THE NECK which they never committed : men who, stand- ing upon the scaffold, having protested their inno- cence to an unheeding people, — a people whose hearts had become hardened by the long con- tinued scenes of judicial executions, and whose ears were then, as attention is now, turned away from the utterances of those who protest their innocence of the crime for which they are con- demned to die. In the year 1721, there lived in Edinburgh, Scotland, a poor hard-working upholsterer by the name of Shaw. He had a beautiful daugli- ter. She was a young woman of great personal attraction, and, by reason of lier father's position, she could not enter the society of the nobility or the aristocracy. Nevertheless, two young men of high birth fell in love with her. One of these young men — a licentious, dissipated man — her father desired her to marry. She protested, say- ing she did not love him, and under no circunv- stances, — not even to please her father, whom she loved as only a dutiful daughter can love a parent, — would she marry him. By reason of her obstinacy and disobedience to her father's wish and request, he became very cruel in his treatment of her. Time wore on and UNTIL YOU BE DEAD." 49 she bore his cruel treatment as long as she could, living a miserable life. Finally, this daughter one day was found in her room weltering in blood. A dirk lay by her side. She was not dead when found, and, before she expired, when asked by those around her who committed this foul deed, she said, "Cruel father, thou art the cause of my death." He was arrested. Upon his shirt there was found, by the officer who made the arrest, a spot of blood, which the poor old man endeavored to explain. He was tried for the murder, con- victed, and on the 17th day of November of that year, was executed for tjie supposed foul murder of his daughter. The people of the city were greatly excited, because of the death of this young woman. And history states there was not one man or woman in Edinburgh who did not fully believe that the old man murdered his daughter. Ap- proval of the execution was therefore general. In August, 1772, the apartments formerly oc- cupied by the Shaws were rented. The man who was to occupy them, in cleaning out the room in which the poor girl was first discovered 50 "HANGED BY THE NECK weltering in her blood, found in a cavity on one side of the chimney a piece of paper, folded like a letter. Upon examination it proved to be a letter written by this young girl, in which she stated, that by reason of her father's cruel treat- ment of her and because she would not marry the man of his choice, whom she hated, he had made her life miserable, and rather than submit to him, she preferred death. In this frame of mind she plunged the fatal knife in her breast, com- mitting suicide. But, ah ! this evidence came — as it often has and will come — too late. The father had suf- fered death — had died, as he said upon the scaf- fold, using his own language, "innocent of the death of my daughter." Sometime about the year 1800, there lived in a rural town in one of the Eastern States, a highly respectable family, consisting of father, mothe*^ and an only child, a son. The boy's father being well to do and prosperous, gave his son every possible advantage in his power, and he grew to be a young man of promise. About the time he arrived at his majority, his parents both died, and he was thrown upon the world to fight its battles, as many a boy left in comfort- able circumstances has been. UNTIL YOU BE DEAD. 51 At this time tliere resided in the same town a young lady to whom he was engaged to be mar- ried. In the course of time, there sprang up between them some differences wliich became irreconcilable, and their engagement was broken off. The young man, disposing of his property, took the proceeds, left and finally arrived in a prominent Southern city. While in that city, he made the acquaintance of a young man from his native State, and after a brief stay they left together in pursuit of business in the interior. They reached a village and put up at a hotel, and while there stopping, they roomed and slept together. - Late one night, the companion of the subject of our sketch had occasion to leave the room. His comrade being fast asleep, of course, did did not miss him until morning. He wondered at his absence, with only part of his clothing, and at once gave the alarm. After a seal^ch he was found dead in the back yard. The landlord had the young man immediately arrested for murder. The murdered man's watch was found under his pillow, but no traces of his money, of which he had considerable, was discovered. Suffice it to say, that every fact and circumstance 62 « HANGED BY THE NECK pointed to the accused as the guilty party, and he was tried, convicted, and hung for the mur- der. Upon the scaffold he protested in lament- able and sad words, his innocence of the crime. But the law was carried out, and he died a felon's death. This landlord moved away and finally reached Ohio. Twenty -two years passed away. He was at last taken sick, and upon his dying bed confessed that he committed this murder, and that he had also, during his lifetime, murdered seven others. Many years ago, in the State of New Hamp- shire — and many of those who read these pages may recall this crime — the remains of a man were found cut in pieces, sewed up in a bag, and hid in a piece of woods. An old miser lived in these woods. He was known to possess a considerable amount of money, and was also known as a very eccentric person. People in the vicinity who knew him identified the remains as those of the old miser. There were living in the same town two brothers, who were desperate characters, and for years had been a terror to the neighborhood. They acted in a suspicious manner, and were finally arrested, and after a long trial were convicted upon circumstantial evi- dence and remanded to jail for sentence. UNTIL YOU BE DEAD." 53 The same day, or the day before they were to be arrainged for sentence, the old miser walked into the town where those brothers were con- fined, to the consternation and surprise of every body. Now, these men had been proven guilty of the murder of this old miser — guilty to the entire satisfaction of the judge, the jury, and the people of the community in which they were arrested 1 And if it had not been for the Provi- dential return of the supposed murdered man, two innocent men would have been hurled into eternity for a crime they never committed. Another case of rescue from the gallows may be cited here, as being one of deep Interest and very pertinent to our subject. John P. Phair was convicted in the year 1876 of the murder of Anna Freese, at Windsor, in the State of Vermont, and was sentenced to be hung at that place on the 6th day of April, 1877. Every preparation had been made by the Sheriff for carrying out the sentence, and the prisoner was preparing to meet his fate. He had asserted his innocence from the very hour of his arrest. Every effort by his friends and the 54 "HANGED BY THE NECK clergyman in attendance upon him, had failed to draw from him a confession. His declaration was: "I am innocent; if they hang me, they hang an innocent man." Finally, all was in readiness, and the hoar for his execution had arrived within thirty minutes of the appointed time. Suddenly, there was handed to the Sheriff the following dispatch : " * Delay execution of John P. Phair until May 4th, next, — written reprieve will be sent by mail.'- '' HORACE FAIRBANKS." Immediately the dispatch was conveyed to the prisoner. It was too much for him ; the poor victim at once broke down and wept bitterly, as only an innocent, condemned man can weep when his life is -spared as he stands under the shadow of the gallows. This case of Phair was a peculiar one. He, too, was [convicted of this murder by not very strong circumstantial evidence. In Vermont, a reward in amount commensurate with the heni- ousness of the crime is generally offered by the Town, County, or State, for the detection and conviction of the criminal. The law of the State UNTIL YOU BE DEAD." 55 does not limit the amount of such reward ; the purpbse being to detect the perpetrator of the crime. At once the detectives are stimulated to action, and every ejffbrt is made to arrest, convict, and obtain the reward. If they are unsuccess- ful in ferreting out the guilty — the reward being generally large — the inducement is for them to weave a net of circumstantial evidence around one whom they think may be most available, and convict him. Certainly there can be but one construction of this practice or law, and that is,, it places a premium for the conviction of the guilty, and an inducement — in the hands of bad, unprincipled detectives — to convict the innocent also. A reward of two thousand five hundred dol- lars was offered for the conviction of Miss Freese's murderer. This amount was sulEcient to induce the detectives to weave around some one a net of evidence, if not positive, probable, augmented by circumstances either directly or indirectly bearing upon the question of guilt, and Phair was selected. But, **man proposes and God disposes." A portion of the Press, as well as many intelligent people of the State, prior to his trial, deemed 56 •« HANGED BY THE NECK the evidence upon which he was held of too cir- cumstantial a character to warrant a conviction. Nevertheless, he was convicted, and when there came a probability of his innocence being estab- lished, the people and tlie press began to cry out against the system of inducing detectives to cre- ate evidence, which endangers the liberty of every man, and has a tendency to convict the innocent as well as the guilty. This poor man is not the only one who has been the victim of this law, and brought nigh unto the gallows by the detectives working more in the interests of rewards than justice, by hav- ing woven around them a net of circumstantial evidence. No wonder that the people and the press of Vermont cry out against this. And yet, strange to say, they advocate the death penalty, in the face of all the horrors and evils which are known to be the result of such a sys- tem. In order to give the facts and circumstances of this case, we take the privilege of inserting the following account which appeared in the Neio York Times, of April 7, 1877 : *' Boston, April 6. — The sensation of the day here is the reprieve of John P. Phair, at Wind- UNTIL YOU BE DEAD." 57 Bor, Vt,, and how it was brought about. In the forenoon Mr. M. D. Downing, of this city, after reading the statement of Phair, published in tl>e morning papers, in his olEce, on School street, jumped out of his chair and exclaimed, ' My God, they have got the wrong man. This man is innocent.' His words and excited man- ner astonished his associates, and as soon as he became calm he stated that he went to Provi- dence on the morning of June, 1874, and re- turned upon a train which left Providence in the forenoon and reached Boston about noon on that day. His memorandum book was referred to at once, and the time was found to be correct. On that train, coming to Boston, he met and talked with a man whom he firmly believed to be Phair, and on reading the statement of Phair he saw how important a link he might possibly supply. Mr. Downing left Boston by the early train, and came back in the forenoon, as stated, being anxious to keep an appointment with a gentleman in Boston, in the afternoon, on an important business matter. Stepping into the smoking car at Providence, he rode in that until he had finished a cigar. The man whom he now supposes to be Phair sat in a seat alone. 58 "HANGED BY THE NECK Taking a seat by his side Mr. Downing soon en- tered into conversation with him. The man said he hailed from Vermont, whereupon Mr. Down- ing, who himself was born and raised in Ver- mont, inquired what section the man was from. *I am from Rutland,' said the man. *I came down yesterday and tried to get work of the Screw Company in Providence, but it is so dull I could not, and I am goiiig back to Rutland.' This led to further conversation. Mr. Downing was in a line of business in which he employed a great many agents, and being favorably im- pressed with the man's appearance, and his evident intelligence, he told him if he did not • find any work, he had better take an agency for Rutland and vicinity for his goods. The idea did not seem to impress the man favorably, so the subject was dropped. Neither knew, or in- quired the name of the other. They talked on general topics and separated. Mr. Downing paid no particular attention to the murder or the trial, and read neither. Of course he could not have known that Phair was the man he had met, nor had any circumstance or event called the matter to mind until he read Phair' s, statement yesterday. Thinking it very improbable that UNTIL YOU BE DEAD." 59 two men had left Rutland June 9, 1874, and ap- plied to the Screw Company for work, and took the same train for Boston June 10, 1874, he con- cluded that Phair might be the man. When he had reached this conclusion it was nearly 12 o'clock, and Phair was to be hanged in about two hours. ** Burdened with the thought that he might possibly be able to furnish evidence that would go a good way toward proving his(Phair's) inno- cence, he immediately started to find some way to let the Governor of Vermont know of his im- pressions before it was too late. He rushed into the Glohe office and told his story. The manager deemed the intelligence of importance, and thought the least that could be done was to tele- graph Gov. Fairbanks, of Vermont, of the facts, and let him act as he chose in the premises. After talking the matter over, both started to the telegraph office, and sent the dispatches to Gov. Fairbanks, appealing to him to stay proceed- ings. An attempt was made to forward these dispatches immediatelj^, and it was found, to the dismay of all three men, that it was the dinner hour of the Montpellier operator and he was out. Then word was immediately sent to all 60 "HANGED BY THE iTECK the Vermont offices to ascertain if the where- abouts of the Governor were known. The hang- ing was to have been at Windsor, and of course the Governor had got to be found in time to com- municate with Windsor, if he desired to do so. Meanwhile the moments were passing away with what seemed lightning-like rapidity. Half-past 12 and 12:45 came. Still no word from Vermont. A dispatch was then sent to the Sheriff a little before 1 o'clock. Still no word from the Gover- nor, and tlie moments were full of suspense and anxiety. It had become very exciting in that telegraph office. '^Finally, at 1:14, word came that the Gover- nor, almost providentially it seemed, was in the telegraph office at St. Jolinsbury, and had re- ceived the dispatch. Then came the rumor that he had granted a respite for one week- A little later it was known that, on receipt of the dis- patches, he at once telegraphed a reprieve to Windsor until May 4, thus giving ample time to fully investigate the information of Downing, and give the condemned man the benefit of the doubt. Then the telegraph office became useless for the time being. UNTIL YOU BE DEAD.'' 61 *' Mr. Downing is a gentleman of standing here, and seeks nothing but to aid in clearing up a dark matter. The telegrams from Vermont re- port a great reaction there in favor of the accused man, and this providential circumstance may save his life." On the second day of May, Governor Fair- banks respited Phair until the first Friday in April, 1879 : giving nearly two years' time for him to prove his innocence. This action of the Governor is explained by the fact that there is no power given the courts of that State to grant new trials in cases, when there is conviction for murder in the first degree. The remedy is by special legislation, giving the court such power. Like the cases before quoted, this man had been proven guilty, and the court and jury were satisfied of it. But in the Providence of God he was saved from the gallows ; and, it may be, will go forth from his cell a free and innocent man. We might go on and cite case after case as strong as those we have given herein, for there are many cases where innocent men and women have suffered by reason of mistaken identity. 62 ^'HANGED BY THE NECK We do not believe our cause needs to be strengthened by a description of such cases, either of the past or present. We believe it to be a merciful and just one, and therefore submit, to any fair and candid minded person, if these cases do not bear powerfully in our favor. The fact that innocent men have been hung in all ages, and will be hung in ages to come, if capital punishment continues to exist : the fact that men in the past have and in the future will be called upon to give up innocent lives and suffer for the guilty, clearly, forcibly, and conclusivelj^ sustains the position we take — that the abolition of capital punishment is an imperative necessity. It proves clearly that a law, as all hnow^ — and which no one can deny, — that punishes the innocent as well as the guilty with death, is a law of intolerable oppression. **ThOU SHALT DO KO MURDER." Who shall ** do no murder ?" No man, no woman^ State or Nation, by the sanction of law. UNTIL YOU BE DEAD." 63 CHAPTER IV. One of the important privileges given to all criminals is the right of trial by jury. This right has existed as far back as any traces of history can bring information of those nations which adopted the feudal system. The constitu- tion of the United States guarantees a trial by jury in all criminal cases, except in cases of im- peachment. Trial by jury was originally secured in Eng- land by Magna Charter. Blackstone says : '' Some authors have endeavored to trace the origin of jury trial to the ancient Britons, but the law seems to have been lost in the obscurity of the middle ages." Again, Blackstone says : ^*In Magna Charter it is more than once insisted on, as the principal bulwork of our (England's) liberties, but especi- 64 "HANGED BY THE NECK ally by Chapter twenty-nine, that no freeman sliall be hurt in either his person or his prpp- erty." This was created because *'the ancient ordeals of red hot iron and boiling water, prac- ticed by the Anglo-Saxons, were the methods to test the innocence of a party accused of crime," — a barbarous usage that *'gave way to the wager of battle in the days of the Normans — a practice that fell into disuse in the thirteenth century, when Henry the 11. introduced into the assizes trial by jury."* • In the constitutional convention, held at Kings- ton, New York, on the 20th of April, 1777, it was declared that : "This convention doth fur- ther ordain, determine, and declare, in the name and by the authority of the good people of this State, that trial by jury in all cases in which it hath heretofore been used in the colony of New York, shall be established and remain inviolate forever." Often do we find jurymen, who under oath have passed upon the life of some victim, con- signing him to the gallows, step from the jury box, and gladly sign a petition asking the par- * let Bouvier'a Law Die, page 770. UNTIL YOTJ BE DEAD." 65 dolling power to pardon the one they have con- victed. Why do they do this? Because the hard and cruel law gives them no choice under oath, in the face of evidence conveying guilt, to say by their verdict that the accused shall not be hung. But they can say as citizens that they do wish a pardon granted and are ready to ex- ercise a christian duty toward a guilty fellow being whom they have convicted. One of tlie most eminentjurists who ever lived, in writing of jurors, says : " Some minds are so skeptical that they receive nothing as true which is not proved by plain and direct evidence, or established upon mathematical demonstrations ; while others readily adopt the most absurd no- tions though unsupported by anything like evi- dence, and destitute of all foundation in reason or the nature of things. And we not un fre- quently find the opinions of the latter class as immovable as those which are the result of the most laborious investigation." It has been claimed by men of great ability and legal learning, that the average juryman in this country is not fitted for so momentous and important a position as to sit upon murder trials and give judgment upon the life of a fellow being. 66 "HANGED BY THE NECK Curran said, *' it was of the utmost importance — it was imperative for the good of society, for the good of the king — that no man should serve as a juryman in any branch of the criminal law unless he was the owner of real estate." It was in this way, he claimed, the jurors became more interested, more capable of assuming the duties of a juror; and although he might, to a certain degree, be unlearned, yet, sitting as an arbitrator between the king and a subject the king was seeking to convict of any crime that would, if found guilty, send him to the guillo- tine, he was better fitted for a juryman's duty. The wisdom displayed by and through the jury system of our country, in the trial of crimi- nals, is of great value both to the prisoner and to the people. Our law has wisely placed this mode of deciding the fate of every person charged with crime in the hands of twelve men. While there is exercised much care in the selec- tion of jurors, who serve in capital cases, we claim there is not taken that degree of caution there should be in obtaining for our criminal juries, men who are really honest, intelligent, and thoroughly impartial in their opinions. UNTIL YOU BE DEAD." 67 We arraign prisoners for murder in our Courts of Justice, and confront them with those who are to become their judges and say whether they shall live or die. They are asked to consider them innocent until they are proven guilty. But how often, for want of proper intelligence and unbiased feeling, are men found in the jury box who ought never to be there ? We need not mention here the fact that there are, too often, brought to bear upon jurors arguments utterly at variance with the facts by the prisoner's coun- sel in order to obtain a verdict of acquittal. How often eloquent lawyers depict the awful scenes upon the scaflfbld, and draw sad pictures to work upon the«sympathies of the jurors, for the purpose of obtaining either an acquittal or a less degree of punishment than attaches to the offence charged in the indictment. This is, we claim, the inevitable result of the enforce- ment of the death penalty. No juror would for £i moment — in the light of facts suflBcient to con- vince of guilt — allow his feelings to be influenced by any power brought to bear upon him if there was no such method as hanging. It is the "awful responsibility" of taking from a human being a life by their verdict, that makes jurors 68 "HANGED BY THE NECK seize upon the most trifling pretext as an excuse to either acquit or spare the life of the criminal. Stand in any court room and look into the faces of jurymen empanelled to try a murderer, and is it not true that, in almost every case, we can discern men sitting in the jury box unfitted for such an important and solemn position ? Can we not see men who, by their very counte- nances and general appearance, are utterly in- capable of grasping those questions which may call for calm, cautious, unbiased, and deliberate opinions, upon which the fate of some poor un- fortunate man or woman may hang? Then, again, we see there men who show in their faces unmistakable evidences of the '* awful respon- sibility" of being compelled to perform such an unpleasant duty. But we do not propose to follow this subject — fraught with so much importance — any further in this connection, We turn to sadder scenes, and point to the gallows — point to that place where men and women are called upon to sur- render that life which we claim none but God has the right to take. We present the account of the execution of a poor condemned man, which was taken from UNTIL YOU BE DEAD.'* 69 The Neto York Evenivg Post, of the day named tberein, and ask Christian men and women — who must shudder at such sad scenes — to consider this case carefully, and answer the question, ''Does not humanity demand a repeal of the law executing men and women?" "THE GALLOWS. "the execution of LINDSAY— his PROTES- TATION OF INNOCENCE ON THE GALLOWS. " Syracuse, February 11, 1876. *' Preparations for Owen Lindsay's execution, at the Penitentiary, were made yesterday after- noon. The gallows was the same which was used at the hanging of Pralich here, Ecker at Fonda, and Smith at Watertown. *' Lindsay's daughter spent several hours with him, and his wife, father, and other relatives were with him much of the time during the day. The final intervietv with his family took place at nine o'clock this morning ; it was very affecting. Lindsay protested his innocence, and expressed no fear of the hereafter. He summoned his own pastor, the Rev. William Manning, of Roches- ter, who last evening administered spiritual con- solation, and besought him not to die with a lie 70 "HANGED BY THE NECK on his lips, and to tell the whole trath ; but fre- qnent beseeching only brought forth the assur- ance that he was innocent. "Vader, the accomplice, on whose testimony Lindsay was convicted, stoutly reiterated the entire truth of his evidence. The prisoner made arrangements for the temporary lodgment of his body at Oakwood vault, and for a quiet burial at his old home in Lysander, at a future time. "At the parting with the superintendent of the Penitentiary and others, the prisoner asserted his innocence, bursting into tears. The prisoner did not go to bed during the night, but chatted familiarly with the officers and reporters. '' At a quarter to seven o'clock this morning, he retired, and slept one hour, when his wife awoke him. He was allowed two hours with his family. At twenty minutes to ten the sheriff ordered him to prepare foi: the last scene. He dressed himself carefully in a suit of black. The death warrant was iread to him by the sheriff, and a brief prayer was made by the Rev. Mr. Manning. "At half-past ten the blackcap was drawn over his face : one minute later the rope was cut and the body fell. :He died in ten minutes. UNTIL YOU BE DEAD." 71 ** When standing under thegallowSj Lindsay said, in a firm tone of voice : * I am innocent, gentle- men, of the crime ; 1 know nothing of the mat- ter whatever ; I never had a lisp said to me in regard to it in the world. I am as innocent of this crime as any man in this company. lam innocent before man and God,^ " Here was a man convicted upon the testimony of an accomplice, nnd as he stood upon the scaf- fold — yea, upon the very threshold of eternity — he proclaimed to the world he was about to leave, and in the presence of the God before whose bar but a short time would elapse ere his spirit was to appear, "I am innocent before man and God." But the sheriflF, in obedience to the law of New York, launched him into eternity, and almost before the sound of the poor culprit's* words of protest had died upon the ears of his hearers, he was dangling in the air, giving up it may have been an innocent life to satisfy the justice of the law. Must we listen to such dying declarations as these, and heed them not ? Must we be em- powered by law, at the same moment they are uttered, to launch the soul of the being who utters them into eternity ? 72 "HANGED BY THE NECK This is the question to be answered by the people of this Christian land. The day draws nigh for the answer. At an execution whicli took place in Massa- chusetts, during the spring of 1876, the prisoner, — after he had been placed upon the scaflFold, and only a few moments before the State, by the authority vested ia it by law, had hanged this man — raised his hand, and with his face turned heavenward, said : " I declare to all men that I die innocent of willful murder ; I die cherishing no feeling of resentment toward any one ; I die forgiving all the world for any wrong I have re- ceived. It is hard, but 1 freely do it." To his counsel he said: *' Try and keep track of this matter. I liope that in time, and I am assured, that it will be cleared up. I feel that in six months men will say, ^ If toe haduH hanged that man toe shouldnHJ* " And at the same time the Minister of the Gos- pel who administered to the poor fellow spiritual consolation, made the following prayer, as the sad act was about to be consummated : '* O Grod, we confess Thy power and wisdom and Thy mercy. Thou art our Creator and the Creator UNTIL YOU BE DEAD/' 73 of this man, who is so soon to meet Thee. Bless the Slate that, for safety and security, is ahout to per- form this solemn and awful act. Have mercy on this man. Meet him now and conduct him to Thyself. For the sake of Jesus Christ, our Sayiour. Amen. Amen." Sent by the State out of this world ! What consolation can there be to the people in such a prayer for the soul of the murderer invoking the Divine presence in the face of such scenes? Ah ! how true is the language, ^^If an innocent man suffers, society cannot restore him to life.^^ These two men were presumptively innocent. We do not question the purity or the motives of those who were the jurymen, or the judges who presided over these trials. They had solemn duties to perform and were undoubtedly con- vinced of the guilt of the condemned. But it is the law that is at fault. We say, that in view of the scenes at these two scaffolds, and the protestations of innocence there made, it was murder by the State when the hangman's rope was placed around the necks of these two men that, in the twinkling of an eye, took the lives which God had given them. 74 ** HANGED BY THE NECK Surely society cannot return to them their lives, and upon the State may be the blood of at least one innocent man. As we have said, we find most men who wish to keep these statute laws in force, after having been driven to the wall by the powerful battery of charity^ flee to the Bible, and there endeavor to find Divine authority and argument to sustain their theory. First, they go to the old testament, and take the Book of Genesis, as we said before, and quote the 6th Verse of the 9tli Chapter, "Whoso sheddeth man's blood, by man shall his blood be shed." Then, to the 20th Chapter of Exodus, 13th Verse, and there find, '' Thou Shalt not kill." Then, to the 24th Chapter of Leviticus, and the 17th Verse, '' And he that killeth any man shall surely be put to death." These passages, quoted as they are, seem to make a strong case for capital punishment. But taken in connection with others, and the mean- ing that we put upon them, fail utterly, viewed in an intelligent light, to prove that God in His goodness intended after Christ came that this punishment should be continued. Against these, therefore, we have the New Testament teachings founded in love, and the UNTIL YOU BE DEAD." 75 most severe Divine decree for the punishment of murder that can be found therein, is found in the 21st Verse of the 5th Chapter of Galatians, where Paul says : '* Envyings, murders, drunk- enness, revelings, and such like: of the whicli I tell you before, as I have also told you in time past, that they which do such things slutU not in- herit the Kingdom of God.^^ This was to be the Divine punishment of the murderer. After Christ came he was to be dis- inherited and excluded from the Kingdom of God. This language was from Paul by author- ity as a minister of Jesus Christ, and is so plain I that the most prejudiced mind must recognize it as conclusive. It was not modified nor gain- sayed in any way, or at any time. Love was to be cultivated, charity inculcated among the people. And this doctrine was reaffirmed, as found in the 22d Chapter of Revelation, 15th Verse : ''For without are dogs, and sorcerers, and whoremongers, and murderers, and idola- ters, and whosoever loveth and maketh a lie." These were crimes which shut men out of the Kingdom of God. It does not appear that sor- cerers and idolaters were to be cast out and murderers executed. Not at all. The same 76 "HANGED BY THE NECK Divine punishment was to be meted oat to the whole of this class of criminals. Thus we find that these are the only two passages in the New Testament where the punishment of the mur- derer is alluded to in emphatic terms. If it had been Christ's intention to perpetuate the doctrine taught in the time of Moses — the shedding of blood for blood — He would have said so in so many words while upon earth. As the great teacher of mankind, he would un- doubtedly have commissioned some of His apostles to have proclaimed it and caused no ambiguity to exist upon this point. He ex- pressly said, '*Thou canst not make one hair white or black." In the old scriptures there was no hanging for the crime of sorcery or idolatry. These were great crimes, great as murder, as defined by the New Testament, for we find them spoken of in connection with murder. Hence we can infer that no Divine right was intended to be given to man, whereby he was to exercise the power over the life of his fellow. What did our Saviour mean, when He said, ''Father /or^ive them, for they know not what they do ?" We believe He meant to abrogate that law which was so cruel UNTIL YOU BE DEAD." 77 in the time of Moses, and which through igno- rance, sin, superstition, and a love for bloody retaliation, followed down the line of ages until now it is the doctrine still unhappily in exist- ence in modern times. Aye 1 He meant more. He meant to proclaim to the world charity, mercy, love, forgiveness : all that is so noble, so sweet, and so holy in His divine nature. It is asserted that if the law of capital punish- ment were to be repealed, solitary confinement would not be a sufficient terror to those who com- mit murder ; that the gallows presents a horror which nothingelse can. This, to a certain extent, is true. But, aside from any consideration of mercy, is not solitary confinement during the natural life to be dreaded more, when it is fully considered, than the prospect of being executed, taking into account the chances of escape which surrounds the one and does not the other ? We know that the life of the murderer is as sweet to him as that of any being, and that nine out of ten would, if given the opportunity, pre- fer the sentence of solitary confinement to that of death. But such a confinement is a very dif- ferent and more severe sentence than that of hard labor for life, which the prisoner will fully 78 "HANGED BY THE NECK realize when be comes to experience it, for to be placed in solitary confinement for life, without hope of escape, — shut out from the world and virtually dead to it*— would become more dread- ful than the hangman's rope. Recently a woman in the State of Ohio, who had originally been sentenced to be executed, and such sentence without any solicitation on her part at the time, had been commuted to imprison- ment in solitary confinement for life, appealed to the courts to be allowed to go forth from prison and be executed. She had for some years suf- fered such confinement, but as time passed she became weary of such a life, and preferred death to it : it was worse than death, and she was willing to give up her life rather than sufl^jr the torture of mind throughout a hopeless future. The Court is now considering her case, and the people of this country are anxiously waiting to see the final result. Thus we see, in one case at least, that our point is sustained, and fully believe, that if solitary confinement was the penalty for murder instead of death, it would be as great a terror to the murderer as the gallows. UNTIL YOU BE DEAD." 79 CHAPTER V. The plea of insanity, in cases of murder, has become one which is seriously troubling the mihisters of justice. The fact that so many murderers escape punishment by reason of well conceived and deep laid plans to feign insanity, is bringing our law-makers to consider how they may so frame laws as to reach each particular case. Guilty men escape the gallows, who have successfully pleaded this absurd and deceptive theory of a temporary insanity, caused many times by the advice of unscrupulous lawyers who conduct their cases. The courts are constantly annoyed by the cunning of this class of crimi- nals, and jurors are perplexed, mystified, and too often deceived by this feigned insanity, until the course of justice has sunk, in many States, 80 " HANGED BY THE NECK into opprobrium. How often is the question asked, as murderers are acquitted because of the plea of temporary insanity, *' Wlien are our al- ready overburdened Courts of Justice to be free from this class of cases ?" We answer not until the law of capital punishment is abolished, and this class of men who dare to act as only guilty men can act to save their necks from the halter, are made to know that to commit a murder and at once become insane, is a thing that neither the courts, juries, nor society will tolerate. We wish to give a case in point, which occur- red in the State of New Jersey in 1875. A man of prominence and respectability walked into the office of a rival editor and deliberately shot him. The victim, after lingering for nearly a year, died, — soon enough to make the crime murder in the first degree by the statute of New Jersey. The man who committed this deed was brought to trial, and the only defense which could be pleaded with any degree of success was insanity, If one day before the shooting of his rival, he had been charged with being insane, he would have taken it as an insult. Yet the jury that tried him, to the astonishment of al- most everybody, acquitted him on the ground UNTIL YOU BE DEAD." 81 that he was actually insane when he committed the act. Does any one suppose that, had there been no hiw to hang men in New Jersey, he would have been acquitted when the shooting was admitted to be really without cause? Not at all ; for no man was ever more guilty of mur- der than he. Yet the jury, like hundreds of juries before this one, gave him the benefit of existing doubts, and left him loose upon the world. What hap- pened afterwards? One week after his acquit- tal, a comyiission of physicians and another jury were selected according to law to ascertain if he really was insane. This commission unanimously said he was not, and he walked out a free man to enjoy the comforts of life. Justice again mocked, because the sympathies of jurymen would not let them hang a fellow-being upon testimony which, if he could have been im- prisoned for life, would have placed him in the State prison. Now, we often see the fact demonstrated that the death penalty works damage to society, and wrings from justice her subjects. We see de- monstrated that juries will do anything consci- entiously to save a man from the gallows. We 82 "HANGED BY THE NECK see guilty bad men turned loose upon society, and human life becoming, as it were, a plaything to these wretches. Tlierefore, when we reflect upon these import- ant facts, what can be more evident and true than this : that the welfare of the people, as well as Christianity, demands the abolition of capital punishment. How many sad spectacles of crimes eminate from the curse of liquor ? How many men have been sent upon the scaffold for committing mur- ders when they were drunk, and, therefore, non compos menlis. Drunkenness has been defined by many emi- nent jurists to be a species of madness, or " de- mentia offeclata^" The law holds the drunkard who commits murder to the same responsibility as if he were perfectly sober, and knew what he was doing. It is a rule of common law, that drunkenness is no excuse for murder. When the poor forsaken Reynolds a few years ago awoke in a cell in the Tombs of the City of New York, from a drunken debauch, and was in- formed that he had committed an atrocious mur- der, he was horrified, for when it was committed he was mad from liquor and knew nothing of it. UNTIL YOU BE DEAD." 83 And wlien he subsequently exclaimed through the grates of his cell door, in his delirious con- dition, partially in jest and partially crazed with fear, that ** hanging was played out in New York," a new thirst for the blood of murderers at once seized the people, and thus capital pun- ishment seemingly found a justification all over this land. We do not crave any sympathy for the drunk- en murderer. The cause of his maddened con- dition when he commits a murder under the influence of liquor, is self-inflicted, and, there- fore, he is responsible, and should suflfer the consequences of his acts. Very many readers of this work will remem- ber the celebrated case of Henrietta Robinson, the veiled murderess. She was indicted for the murder of Timothy Lanagan by poison. The de- fence was drunkenness ; that at the time she ad- ministered the poison from which he died, she was intoxicated, and hence irresponsible for her act. She was ably defended, and nothing that could be done was left undone in the attempt to obtain for her an acquittal. But all efforts were futile, for she was convicted of murder in the first degree. 84 "HANGED BY THE NECK This trial took place in the Citj' of Troy, New York, before Judge Harris, in the month of May, 1854. The whole country became excited over it. Like the Hartnng case, it involved the life of a woman, and the ej^es of the public were again turned upon a case where a woman, if convicted, would be hanged. Again, to prove that Judge Harris was an im- plied opponent of the law of capital punishment, we quote briefly from the able charge he deliv- ered to the jury in this case. He said: ''It is but once, perhaps, in the course of a man's life, that he is called upon to decide the fate. for life or death, of a fellow-being, when, in the impressive language of the ceremony which initiatesyou into your ofiBce as jurors, the life of a/eUoto creature is given in charge to itoelve men. The prerogative to determine life, belongs to the source of life itself* It is the highest power that man, himself the subject of mor* tality, can exercise, to assum^e this prerogative and de- clare the life of his fellow man forfeited. This fearful responsibility rests upon you." 4v * * * '' With the policy or toisdom of the law which de- mands life as the penalty of crime, neither you as a jury or we as a Court, have anything to do. Were toe sitting as legislators, it might become us to UNTIL YOU BE DEAD." 85 express our opinion on this subject ; bat placed here, as we are, to administer the law, it is oar duty to take it as we find it." Sustained by the common law of this land, and by the statute law of this and most of the States of this Union, Judge Harris, in charging the jury upon points of law, said : *'That if the prisoner was intoxicated, even to such an extent that she toas unconscious of tohat she was doing, still the law holds her responsible for. the act." * ♦ * ** Her self-inflicted insanity must not be allowed to avail her. The law imputes to her a murderous intent." Thus it becomes an established fact, supported by law, that capital punishment is enforced equall}' against the miserable wretch wlio com- mits murder when not himself, and knows not what he does, whose faculties and senses are paralized, whose better nature is overcome by the evil in him, brought out and maddened by liquor, as against tliat murderer wlio, in the full possession of his faculties, premeditatedly, wick- edly, intentionally, commits a murder with full knowledge of what he is doing and what will be the inevitable consequences of his awful crime. The Christian Union, in a recent able article on 86 " HANGED BY THE NECK capital punishment, thus deals with it: ''The effect of the wearisomely repetitious discussion of this subject has been steadily to weaken and to nullify the once popular arguments for capi- tal punishment. The gallows, a more savage relic of barbarism than the whipping-post, is defended only by a traditional conservatism, and a sentiment of vengeance. The Biblical argument is abandoned. The fact that Moses in the wilderness, where prisons were impossi- ble, prescribed the deatli penalty for aggravating crimes, is no reason why it should be maintained in a settled Christian community after three thousand years development. The argument from necessity never deserved respectful consid- eration. To say that the people of the State of New York are incapable of protecting them- selves from a single murderer except by strang- ling him, is to deny their competence to deal with the simplest problems of civilization. The argument of justice is specious but unsound." * * * * * *' The supposed deter- rent influence of the gallows is not substantiated by the facts of history. Crime has steadily de- creased with the decrease of capital punishment ; and it surely devolves upon the advocates of the death penalty to show that the influence of terror UNTIL YOU BE DEAD." 87 which has not been adequate to deter men from small crimes, will deter them from greater ones." One of the important, and probably the most serious question to be decided in connection with the abolition of capital punishment, is, what method of punishment is the best to be proposed for the convicted murderer ? We say, " Imprisonment in solitary confinement FOR LIFE." Then put the pardoning power under the combined control of the Governor and the highest judicial power of the State, which shall constitute a Court of Pardon, forbidding it hearing or receiving a petition for the pardon of any murderer under sentence for life, for the space of twenty years or more, as may seem just and proper, unless there is positive proof, to the satisfaction of the Court of Pardons be- fore which such petition shall be presented, that tliere is newly discovered evidence, or upon the confession of some person wlio did commit the crime for which the petitioner is serving a life sentence. In this way there could be no fraud or deceit practiced by the criminal, because, if a confession should be made by one that he committed tlie crime, he would stand in the place of the already condemned ; if by newly 88 "HANGED filT THE KECK discovered evidence, the Court of Pardons should be fully and unanimously satisfied that a new trial could be had with safety, or a pardon granted to the accused. Tliereby justice to crim- inals would be meted out, society and the State be fully satisfied and protected, and the mur- derer in his solitary confinement, if guilty, could in agony exclaim — ** Til dark, 'tis cold, and hung with gloom, — How can I in this daogeon itay ?" As yet ho State has enacted a law that is what it should be. Among those which have abol- ished capital punishment, the best law, proba- bly, is the one passed February 21st, 1876, in the State of Maine. We insert this law in full, be- lieving that if it can be read generally by the public, it will have a tendency to eradicate the prejudice of very many upon this highly im- portant subject. ** CHAPTER 114. ''AN ACT TO ABOLISH THE DEATH PENALTY, AND TO REGULATE THE MANNER OF AP- PLYING FOR PARDONS IN CERTAIN CASES. ** Be it enacted, dtc, as follows : ^^ Sec. 1. The penalty of death, as a punish- ment for crime, is hereby abolished. UNTIL YOU BE DEAD." 89 " Sec. 2. All crimes now punishable with death, shall hereafter be panishable by impris- onment at hard labor for life. " Sec. 3. Whenever any person who has been sentenced under the second section of this act shall desire to obtain a pardon, or a commuta- tion of such sentence, he may present a written request to the Justices of the Supreme Judicial Court, in term time or vacation, asking that ap- plication therefor be made to the Governor in his behalf, and shall therein set forth, specifi- cally, the grounds on which such application for pardon or commutation of sentence is re- quested, and the facts which he expects to prove in support of the same, together with the names and residences of the witnesses by whom he expects to prove such facts ; and with such re- quest he shall present the affidavits of such wit- nesses, and a copy of all the evidence taken at the trial in which he was convicted, which evi- dence shall be taken and preserved as provided in section seven, Chapter one hundred and thirty- five of the Revised Statutes. ^^ Sec. 4. If, upon examination of said request and the affidavit therewith presented, said justi- ces shall be of the opinion that new and material 90 '« HANGED BY THE NECK evidence has been discovered, which v/sls not known, and could not, by the use of due dili- gence, have been obtained at the time of the trial, they shall appoint a time and place for a hearing thereon, and order notice to be given to the Attorney Greneral and to tlie County Attorney of the county, in which said person was con- victed, that they may appear in behalf of the State. ^^ Sec. 5. At such hearing no evidence shall be deemed pertinent, except such as has been dis- covered since the trial, and such as relates to material facts, tending to show that such person was wrongfully or erroneously convicted, or that he is innocent. ^^ Sec. 6. If upon all the evidence said justices shall be of the opinion that such person was wrongfully convicted, or that he is innocent of the crime of which he was convicted, and that an application should be made for his pardon, or for a commutation of his sentence, they shall so order, and thereupon the clerk of said court for the district in which said hearing is had shall make up a record of the proceedings had on such request, and transmit a copy thereof, and of all the papers in the case, to the Governor, UNTIL YOU BE DEAD." 91 together with an application to the Governor, made by him in behalf of such person under the order and direction of said justices, for such pardon or commutation of sentence. ** Sec, 7. On receipt of such application, the Governor may, with the advice and consent of the council, grant a pardon, or a commutation of sentence, upon such conditions and with such restrictions and limitations as may be deemed proper, and to carry the same into elBfect may issue his warrant directed to all proper oflBcers who sliall serve and obey it. "Approved, Feb. 2l8t, 1876." As we said before, those who favor the death penalty plead in its defence the Divine right to execute men. We remember that for more than two centuries human slavery in America was defended by its ablest champions as a Divine institution, existing by Divine right. We know that Brigham Young and his fellow polygamists defend polygamy upon passages selected from the Bible quite as relevant as those selected in defence of capital punishment : that they claim it is an institution which existed before the Christian religion, and is worthy of acceptation. We know that every bigamist, when arraigned 92 "HANGED BY THE NECK in our courts for bigamy, can plead the same Divine authority in support of his crime. He can open the Bible and point to the career of King David — one of the grandest characters of the Old Testament — with six wives, and can point to King Solomon with eiglity wives and concu- bines. These instances, he declares, should be regarded as very strong biblical authority for a plurality of wives. If slavery, polygamy, and bigamy are in con- tradistinction to the tastes and religious senti- ments of an intelligent and enlightened people, is not the execution of human beings for the crime of murder equally so ? The Divine right to execute human beings is no greater than that which exists for slavery, polygamy and bigamy. What is asked in this matter is consistency. The American people abolished slavery against the strong deep rooted prejudice and opposition of a majority of the people, because it was in- imical to the religious and moral sentiment of the nation. They demand that polygamy shall be wiped out, because it is loathsome and a curse to society and the nation. Society is pro- tected by the enactment of stringent laws for UNTIL YOU BE DEAD." 93 tbe punisliHient of bigamy : it demands that such laws shall be faithfully and rigidly execu- ted ; yet men say we must not abolish the death penalty, because it is the only safeguard against an increase of the crime of murder. We say this is erroneous. For one moment let us pause and look upon the awful scenes enacted upon the platform under the gallows. There stands a condemned human being — a man created in the image of his God — a man in the possession of a life that only his Father in heaven can give — a life that no human law should authorize any power to take : faint and quivering beneath the fatal noose, compelled by a human law to meet death, compelled to bid farewell to all things on earth ; and while standing there, as the quickly pass- ing moments flee, each bringing his time shorter and shorter, his only thoughts connected with the great unknown and unexplored eternity, must be of that pardon he hopes to receive at the bar of God. We behold him as the black cap is drawn over his pallid face ; we see the fatal rope adjusted about his neck ; we hear the faint inaudible prayer from his quivering lips ; we watch the sheriff as he stands aside while a 94 "HANGED BY THE NECK prayer is offered up in behalf of the soul about to go to its maker, it may be by some clergyman with a heart too full for utterance, or by one who sanctions the very law which creates these scenes ; we see the sign given, the rope cut, and a human being wreathing in pain — strangled to death ; and in the twinkling of an eye, we know that a soul has been by the power of a human law sent forth from mortality to immortality ! We turn in sadness from this most terrible of all sad acts, impressed with the horrors of such a law, and probably ask the question, " la all this right r' But the scene is not yet ended. We see ap- proaching that human form suspended by the neck between heaven and earth, a physician, employed to pronounce the victim dead before the oflScer of the law dare touch that body : we see it let down, and the rope that did the fatal work taken from his swollen, blackened, neck ; we see the lifeless body, murdered by law, delivered to sad friends or cast in the Pot- ter's field. And this is the end of a criminal ! This is the end of a man — one loho may be inno- cent and the victim of a law too inhuman for tol- eration in a Christian land. The public press UNTIL YOU BE DEAD." 95 announce the execution, faintly depicting the event which but few read, save those. whose im- aginations are of a naorbid tendency. Thus the criminal goes out of this world as an example forsooth to those who would do murder ! John Bright has truthfully said that '* capital punishment is one of the most barbarous meth- ods that the most barbarous nations can de- vise." Iji bowing humbly and obediently to the law- making power, let us say that, so long as there remains a law in any State in the Union which gives the power to the authorities to hang the condemned murderer for his crime, let that law be faithfully and fully executed. Let those who are opposed to capital punishment take no dishonorable steps to obtain its repeal. On the contrary, let the law be obeyed, but by and through mercj', kindness, human charity. Chris- tian feeling, love for our fellow-man, recogniz- ing the Divine right only to take man's life, let the humane persistently assert the enormity of the practice, and strive to formulate public sen- timent in favor of a repeal of the death penalty that, sooner or later, must take place. 96 *' HANGED BY THE NECK In concladirig this subject, let us ask those who sanction this lavr of judicial murder, — those wlio say, ** I am in favor of choking men and women to death," (for if you hang the one you must the other, no law can be consistently made to discriminate between them,) what good comes of the enforcement of such a law, or the continuance of such a practice? What does society gain ? What precept of the law of God is satisfied or avenged ? What demand of jus- tice is complied with by deliberately, legally, in a Christian land, erecting a scaffold, and in the sight of human kind, leading poor unfortunate wretches upon it that a sheriff may legally choke them to death ? Turning from these horrible scenes, do men fold their arms more complacently and rest more easily? Do they feel more secure from the pis- tol or the dagger? Does hanging place tempta- tion further from the dangerous classes, or does society become purer, better, or more safe? On the contrary, it shudders at the scenes, but has not the moral courage to speak out against them. The old maxim, *' ah assuetis non ejit injuria^ — no injury is done by things long acquiesced in — is not applicable to this most solemn sub- UNTIL YOU BE DEAD." 97 ject ; but "ceguMwi et honum est lex legiim^^ — what is just and right is tlie lata of laioSj carries with it power and authority, and is the back bone of our argument for tlie repeal of this law. Justice and right— justice demanding adequate punish- ment for all crime committed ; right, that no man shall pay the penalty of his crime by death and assert the merciful demands of society. Away with the gibbet ; away with the rope ; away with the black cap ; away with death war- rants ; away with all the inhuman, unchristian mechanism used in obedience to a law founded upon injustice, and against every sense of a civilization so powerfully working to create a higher and nobler manhood, in a country where there exists a Christian civilization elevating the iuman race. APPENDIX. • • ■ The laws of the different States, except those hereto- fore named, so far as we have examined them in relation to murder, are much alike. By a careful research, we find the statutes throughout satiction the same principle and mode of punishment, the aim being to execute the murderer. In the States of Iowa, Maine, Michigan, Rhode Island and Wisconsin, the death penalty has been abolished, and imprisonment for life sul?stituted In Michigan, the criminal is placed in solitary confinement at hard labor. In the States of Iowa and Wisconsin the sen- tence is confinement at hard labor. In the States of Georgia, Kentucky and Texas, there are special enact- ments established in mitigation of the death penalty, and special powers are delegated to the courts and juries, whereby they may exercise such clemency as the facts and circumstances of each will permit. n APPENDIX. In the other States, upon a person being found guilty of a capital offence, the statutes impose the death pen- alty, and vest all discretionary powers with the Gover- nors or Courts of Pardon. We would add, that we have been unable to get any very accurate information as to the number of persons executed in this country, but have received the follow- ing official statement as to the convictions and execu- tions for England and Wales during the years therein named : "A return of tlie persons sentenced to death for mur- der in England and Wales in the years 1873 to 1876 is given in a Parliamentary paper recently issued. In 1873, 18 persons were sentenced to death, and 11 were executed, two of whom were women. In 1874, the number sentenced to death was 25, of whom 16 were executed, two of them being women. In 1875, the capital sentences pronounced were 33, and the number of persons executed 18, one of whom was a woman. In 1876, 32 persons were sentenced to death, and 22 executed. The total number of persons sentenced to death in the four years was 108, and the number execu- tions 67, five of whom were women." On the 12th day of June, 1877, the House of Com- mons, England, voted upon the question of the abolition of capital punishment and it was defeated. Nays 155 ; yeas 55. i.